In Gall v. Commonwealth,
607 S.W.2d 97, 113 (Ky. 1980), the Kentucky Supreme Court, reviewing conflicting
mental state evidence, took the unusual step of "commending" to the General
Assembly the enactment of a statute authorizing verdicts of guilty but
mentally ill (GBMI). In 1980, only two states--Michigan and Indiana-- authorized
GBMI verdicts. That situation was to change in 1982, when John Hinkley,
Jr., was found insane and acquitted of charges of assaulting then President
Ronald Reagan. That year nine additional states, including Kentucky, adopted
GBMI laws.

KRS 504.120, et. seq.,
allowed juries, as urged by the Gall Court, to resolve doubts about
an insanity defense by returning a GBMI verdict. For the next fifteen years,
Kentucky's experiment with GBMI remained free from direct constitutional
challenge.

In 1996, the Court signaled
a change ln its view of GBMI statutes. The defendant in Brown v. Commonwealth,
934 S.W.2d 242 (Ky. 1996), asserted that Kentucky's GBMI law denied him
his due process right to present an insanity defense and that the GBMI
instruction misinformed the jury as to the consequences of its verdict.
While finding insufficient evidence in the record to support Brown's arguments,
the Brown courtin language ironically reminiscent of the Gall
Court's solicitation of GBMI legislationsuggested that it was ready to
give serious consideration to a constitutional challenge to GBMI verdicts.
The Court observed that it was "gravely troubled by a method of punishment
which appears to be nothing more than a charade, cloaked in a verdict,
GBMI, which amounts to nothing more than an oxymoronic term of art." Id.
at 245. A dissent by Justice Wintersheimer described the majority's opinion
as "an engraved invitation... to challenge the validity of the statute."
Id.
at 249.

Following his appeal, the
appellant in Brown declined to pursue a post-conviction challenge
to the GBMI law. Thus, the case that may serve as a vehicle for successfully
challenging Kentucky's GBMI law remains to be found. However, after Brown,
it is clear that the GBMI law is vulnerable. Much of the evidence that
would need to be marshalled in support of such a challenge is also clear,
and DPA's Post-Conviction branch has begun the process of gathering that
evidence for use in an appropriate case.

A successful challenge will
likely rest on two key elements: first, that a verdict of GBMI carries
no consequences different than those carried by an ordinary guilty verdict,
and is therefore nothing more than a guilty verdict with the addition of
the phrase "but mentally ill;" and secondly, that the GBMI verdict option
results in the conviction of individuals who would otherwise be found not
guilty by reason of insanity.

There is No Difference
Between A GBMI Verdict and A Guilty Verdict

In establishing the verdict's
lack of meaningful difference from a guilty verdict, it should first be
understood that a GBMI verdict carries no legal consequences. In particular,
the verdict is not a substitute for involuntary commitment proceedings
under KRS Chapter 202A.

Ordinarily, if a jury returns
a verdict of not guilty by reason of insanity (NGRI), the next logical
step is for the Commonwealth to seek to commit the defendant under KRS
Chapter 202A. The defendant would then receive around the clock treatment
and psychiatric care. DPA's investigation of Corrections' procedures for
intake of GBMI inmates, however, shows that Corrections processes the GBMI
inmate through general intake in substantially the same way it processes
any prisoner entering the prison system. The GBMI inmate is nol automatically
classified to the psychiatric hospital at KCPC. There is no automatic 202A
hearing. Only when Corrections has itself determined that the inmate requires
treatment does it take steps to seek treatment, and if the inmate refuses
treatment, he can only be treated following a due process hearing under
202A. Thus, the procedures observed by Corrections for treating GBMI inmates
do not differ from those for treating any other inmate. Both practically
and legally, a GBMI verdict has no legal consequence with regard to the
treatment of the GBMI inmate.

As a matter of law, a GBMI
verdict is not a substitute for an involuntary commitment proceeding. If
it can be additionally shown that Corrections' treatment of those GBMI
inmates willing to undergo treatment is, at best, erratic, it then
follows that Kentucky courts misinform jurors by instructing them that
if they convict a defendant as GBMI, "treatment shall be provided to the
defendant...."

That treatment of receptive
GBMI inmates is erratic is strongly suggested by Corrections' data on GBMI
inmates. The data show that there are currently 68 GBMI inmates in Kentucky
prisons. Of those, only seven are held at the Kentucky Correctional Psychiatric
Center. The rest are housed at other institutions where continuous medical
monitoring and daily therapy are unavailable. Indeed, eight inmates are
housed at minimum-security institutions where regular medical staff is
limited to a single nurse practitioner.

A lack of automatic treatment
procedures for GBMI inmates is also indicated by the experience of the
defendant in Brown.

In 1985, Brown, a former
postal worker and military veteran with an honorable discharge, attacked
members of his family with a hatchet. Brown's father and brother died;
his mother and sister were seriously injured. Brown had no prior felony
or misdemeanor record, nor any history of drug or alcohol abuse. His family
had no history of abuse or dysfunction.

Brown was found incompetent
to stand trial and was committed to Central State Hospital where he remained
until 1992, when he was determined to be competent. During his seven years
at Central State, Brown was continuously on medication, was under medical
observation 24 hours a day, and participated in daily therapy sessions.

At his trial, the jury was
instructed that if they found Brown GBMI, he would receive a sentence,
but that "treatment shall be provided to the defendant until those providing
the treatment determine that such treatment is no longer necessary or until
the expiration of his sentence, whichever occurs first."

Once placed in Corrections
custody, however, Brown received a less than comprehensive mental evaluation
in a non-clinical setting. Because of his GBMI verdict he was housed in
a special dorm for inmates with a mental health history, but received no
treatment incident to that housing assignment. His medication was continued,
but Brown, acting on his own, eventually stopped taking it. When he refused
further medication, Corrections took no action, not even offering medical
advice. One year after his incarceration, Brown's only "treatment" consisted
of purely voluntary, and sporadic, participation in a "violent offender
group."

A juror in Brown,
experiencing post-trial doubt as to the verdict, wrote to t.he presiding
judge that, "[a] factor in our sentence deliberations was our belief that...Brown
would get special treatment in prison because we had found him 'guilty
but >>>>>>>>>>>>>>

But Brown's experience that
GBMI inmates do not mentally ill' instead of just 'guilty. and Corrections
intake procedures show receive special treatment. Under these circumstances,
the GBMI law gives rise to a constitutionally unacceptable risk that jurors
will be mislead as to the meaning of a GBMI verdict--that is, that difference
between a simple when in fact there is none.

They will believe there is
some "guilty" verdict and a GBMI verdict, Juror ignorance of such a lack
of any real distinction may "induce compromise verdicts by seducing jurors
into settling on a middle ground between guilty and not guilty, when in
fact there is no middle ground." State of New Mexico v. Neely, 819
P.2d 249, 261 (N.M. 1991) (Montgomery, J., dissenting).

The GBMI Law Promotes
Compromise Verdict

Like the lack of any legal
or factual consequences, that GBMI laws lead to compromise verdicts may
be element in challenging the statute. A number of empirical studies a
showing a crucial supporting such a showing were cited in the appellant's
brief in Brown.

A 1986 study used 145 mock
jurors to assess the impact of GBMI instructions on jury verdicts. Savitsky,
J. and Lindblom, W., "The Impact of the Guilty but Mentally Ill Verdict
on Juror Decisions: an Empirical Analysis," Journal of Applied Social
Psychology, 686-701 (1986). The study concluded, "when the GBMI verdict
was available, there were few NGRI verdicts." Id. at 699. The researchers
also concluded from their data that, "[t]he availability of the GBMI verdict
may well encourage jurors to convict innocent defendants on the basis of
irrelevant mental health concerns." Id. at 699.

A 1987 study examined "whether
individuals are less likely to reach judgments of insanity when given the
GBMI option." Roberts, C., Golding, S., and Fincham, F., "Implicit Theories
of Criminal Responsibility - Decision Making and the Insanity Defense,"
Law
and Human Behavior, Vol. 2, No. 3, 207-232, 211 (1987). One hundred
and eighty one mock jurors were asked to choose verdicts in response to
two vignettes depicting violent acts by mentally ill defendants. The researchers
found that when GBMI was offered as an option, verdicts of NGRI dropped
from 60% to 29.5% for one defendant and from 77% to 27% for the second.
The study concluded that "[m]ost lay persons would prefer to utilize a
GBMI option as a compromise verdict even in the most obvious cases of 'real'
insanity." Id. at 226.

Similar conclusions were
reached by a study in 1990: "We observed that when the GBMI verdict was
made available to jurors it resulted in a twofold effect namely, we observed
approximately a two-thirds reduction in both NGRI and straight guilty verdicts."
Poulson, R., "Mock Juror Attribution of Criminal Responsibility: Effects
of Race and Guilty but Mentally Ill (GBMI) Verdict Option," Journal
of Applied Social Psychology, 1596-1611 (1990).

A 1991 study further builds
the case that the GBMI option leads jurors to reject an NGRI verdict they
would otherwise reach.

Roberts, C. and Golding,
S., "The Social Construction of Criminal Responsibility and Insanity,"
Law
and Human Behavior, Vol. 15, No. 4, 349-375 (1991). The researchers
found that rates of NGRI verdicts dropped from 60% to 35%, and "represented
a shift from a probable to an improbable NGRI verdict." Id. at 368.
The researchers concluded that: "These data demonstrate clearly that the
GBMI judicial instructions and verdict option significantly reduce rates
of lay persons' individual predeliberation NGRI verdicts in vignette cases
involving floridly psychotic defendants whose delusions are closely related
to the nature of their criminal acts."

Finally, a 1993 study, whose
findings were consistent with those of the studies cited above, posed this
conundrum:

Certainly it remains an
interesting puzzle as to why a majority of persons are willing to adjudge
psychotic persons with minimal reasonability capacities as insane under
traditional...instructions, while a substantial majority of persons adjudge
the same defendants as 'functionally guilty' under GBMI supplemented instruction's.
Id.
at 274.A GBMI verdict may present a
very attractive compromise to a jury struggling with a difficult decision
as to a defendant's sanity. Citing the law's promotion of compromise verdicts,
the Illinois Court of Appeals this year became the first appellate court
in the nation to invalidate a GBMI law. People v. Robles, 682 N.E.2d
194 (Ill. App. 1997). Here in Kentucky, the Cabinet for Health Service's
Task Force on Law, Violent Crime, and Serious Mental Illness referred to
the Roble decision in their October 1997 recommendation that Kentucky's
GBMI law be repealed.

Conclusion

More evidence needs to be
developed to challenge Kentucky's law: evidence as to Corrections intake
procedures and treatment (or lack of treatment) of GBMI inmates, expert
testimony as to the clinical inappropriateness of utilizing a prison as
a "treatment environment," statistics on the impact of GBMI verdicts on
the number of acquittals by reason of insanity in Kentucky and nationally.
DPA's Post-Conviction branch is working to develop this evidence so that
it will be available for use, at trial, by defendants

wishing to challenge the
law Anyone interested in challenging the GBMI statute, and who believes
that his or her client's case is appropriate for presenting such a challenge,
should contact DPA's Post-Conviction branch in Frankfort for assistance.
It's time that the GBMI law's promise to jurors that by convicting an insane
defendant they insure he will be treated is exposed for the falsehood it
is.

Comes the defendant, Stacy
Dean Meadows, by and through counsel, and respectfully moves this Court
for an order declaring that KRS 504.120(4), KRS 504.130, KRS 504.140, KRS
504.150 (Kentucky's "guilty but mentally ill" statutes) are unconstitutional
because the Commonwealth has ruled and will continue to fail to provide
treatment for those criminal defendants found guilty but mentally ill and
because the guilty but mentally ill (hereinafter "GBMI") statutes are acting
solely as a nullifier to the not guilty by reason of insanity (hereinafter
"NGRI") verdict which is authorized by law and is firmly established and
integral part of Kentucky criminal law.1 Defendant asserts that
application of the GBMI statutes in this case will violate Mr. Meadows'
rights to due process, a fair trial, to present a defense, and to freedom
from cruel and unusual punishment as protected by Sections 1, 2, 3, 7,
11, 17 and 26 of the Kentucky Constitution and Amendments 5, 6, 8, and
14 of the U.S. Constitution. As grounds for this motion, the defendant
asserts the following:

1. Stacy Meadows stands
accused of murder, kidnapping, and burglary in the death of Bonita Jo Young.
Previous counsel has filed a notice of intent to introduce evidence of
mental illness or defect at the trial. Current counsel intend to present
an insanity defense at the trial of this matter. Mr. Meadows was evaluated
at the Kentucky Correctional Psychiatric Center (KCPC) by Dr. Candace Walker
and found to be not criminally responsible for his actions during the time
of the alleged offenses due to his mental condition of chronic paranoid
schizophrenia with acute exacerbation. Mr. Meadows was also evaluated by
Dr. James Hallman from the Green River Comprehensive Care Center who diagnosed
him with a psychotic condition which would render him not criminally responsible
if malingering was ruled out.2 Mr. Meadows was under psychiatric
care at the time of the crimes charged in the Indictment and in fact had
been to his doctor, Dr. Kinnaman, the day before.2. Despite the Commonwealth's
knowledge of the defendant's mental status, the prosecutor has chosen to
seek the death penalty in this case. Thus, the disposition of the charges
takes on greater significance because of the heightened sentencing potential
and the conduct of this case will receive great scrutiny if a death penalty
is imposed upon this ill man.

3. In most cases where insanity
of the defendant is raised, the guilty but mentally ill statutes, enacted
and effective in July 1982 as a reaction to the Hinkley acquittal, are
applied at the request of the Commonwealth or the defendant. Pursuant to
KRS 504.130 a defendant may be found guilty but mentally ill if the prosecution
proves beyond a reasonable doubt that the defendant is guilty and the defendant
proves by a preponderance that he was mentally ill at the time of the offense.
Although the statute seems to read that GBMI is a type of affirmative defense
which a defendant may choose to raise, in reality, GBMI is most often used
by prosecutors to ensure a conviction and a sentence equivalent to one
given to a defendant who does not suffer mental illness.

4. The Commonwealth has stated
in its "Response to Motion to Exclude Death Penalty as a Sentencing Option
for this Mentally Ill Defendant" that the Commonwealth does not believe
the defendant to be mentally ill as that term is defined in the statutes."
This is ridiculous given the information available to the Commonwealth
and the evidence at trial will demonstrate that Mr. Meadows is both mentally
ill now and at the time of the charges and was insane at the time. Because
of the similarities between the mental illness and criminal responsibility
statutes3 and the nature of Meadows' illness and insanity, the
GBMI statutes will be applicable in this case. However, the current operation
of the statutes is contrary to due process and to the right of a fair trial
because GBMI convicted defendants are not receiving treatment and the statutes
are operating solely to serve as a nullifier for the NGRI verdict.

We are indeed gravely troubled
by a method of punishment which appears to be nothing more than a charade,
cloaked in a verdict, GBMI, which amounts to nothing more than an oxymoronic
term of art.

Despite being troubled the Supreme
Court refused to rule on the merits due to the lack of appropriate evidence:Unfortunately, however,
this is not the case to determine either the constitutionality of the GBMI
statute or the effectiveness of its provisions, as the record in this matter
is essentially devoid of any evidence with which to consider such issues.
Id.

The Court noted that Brown
offered newspaper articles alone in support of the allegations regarding
GBMI and that he "could have strengthened his case with more relevant and
credible references, especially with regard to the issue of treatment."
Id.

6. The defendant requests
a hearing on this motion at which counsel for the defendant will be able
to present testimony regarding the current treatment policy within the
Kentucky Corrections Cabinet for those people convicted of crimes who have
been found guilty but mentally ill. Further, defense counsel wish to present
information about the impact of GBMI on the return of NGRI verdicts.

7. Defense counsel would
direct the Court's attention to several scholarly works dealing with the
GBMI verdict that were cited in the appellant's brief in Brown v. Commonwealth,
supra.
In 1986, two researchers used mock jurors to "provide data for use in determining
the constitutionality of the GBMI statute." Savitsky, J., and Lindblom,
W., "The Impact of the Guilty but Mentally Ill Verdict on Juror Decisions:
An Empirical Analysis," Journal of Applied Social Psychology, 686-701,
686 (1986). The study used 145 undergraduates as jurors and concludes that
"most criticisms of the GBMI verdict rest on the notion that the availability
of this alternative will serve as a
de facto veto of the insanity
plea. Indeed, the current study does indicate that when the GBMI verdict
was available there were few NGRI verdicts."
Id. at 699. The data
from the study also demonstrated that, "The availability of tho GBMI verdict
may well encourage jurors to convict innocent defendants on the basis of
irrelevant mental health concerns." Id. at 699.

8. Another study cited in
the Brown appellate brief was conducted in 1987 for the purpose
of examining "whether individuals are less likely to reach judgments of
insanity when given the GBMI option." Roberts, C., Golding, S., and Fincham,
F., "Implicit Theories of Criminal Responsibility -- Decision Making and
the Insanity Defense," Law and Human Behavior, Vol. II, No. 3, 207-232,
211 (1987). The study involved 181 undergraduate stu dents responding to
vignettes portraying an act by a mentally disordered defendant

[T]he GBMI option had a twofold
effect. First, the GBMI option reduced markedly the proportion of schizophrenic
defendants found NGRI [Not Guilty by Reason of Insanity] (Schiz I went
from 60% NGRI to 29.5% and Schiz II went from 77% NGRI to 27%). Thus, even
those defendants who had been adjudged almost unanimously (and, we would
argue appropriately) to the NGRI were now found GBMI... Id. at 222.

The study concluded that
"Most lay persons would prefer to utilize a GBMI option as a compromise
verdict even in the most obvious cases of 'real' insanity." Id.
at 226.

9. A study published in 1991
used data from a sample of undergraduates and from a community sample selected
from the phone book. Roberts, C. and Golding, S., "The Social Construction
of Criminal Responsibility and Insanity," Law and Human Behavior,
Vol. 15, No. 4, 349-375 (1991) and concluded as follows:

10. Counsel for the defendant
are unaware of whether studies in Kentucky have been done to determine
the effect of the GBMI verdict since its effective date of July 15, 1982.
Counsel Gleason contacted the Administrative Office of the Courts and spoke
with Acting Manager of Research and Statistics Bonnie Embry to determine
whether data regarding NGRI dispositions prior to and after 1982 were available.
Counsel was told that no disposition code for that result was available
to Ms. Embry's knowledge although there is a code for incompetent to stand
trial. Ms. Embry stated there was no program available to her knowledge
to retrieve the data and that if one existed it probably would not determine
NGRI results since there is no disposition code for that result. Thus,
"not guilty" dispositions could be obtained but the reason would be unknown.

11. There is anecdotal evidence
of the impact of GBMI on NGRI acquittals available. In the five years (1991-1996)
that undersigned counsel Gleason was a member of the capital trial unit
and monitored capital cases from around the state, there was only one NGRI
acquittals in the state in a murder case to Gleason's knowledge. This was
the case of Valerie Wallace, a battered woman tried in Jefferson County
for the murder of her spouse. The Commonwealth sought the death penalty.
After the NGRI acquittal, Ms. Wallace was found to not be a danger to herself
or others and was released. In the time period prior to that, there was
an NGRI acquittal in Northern Kentucky in the murder case of Commonwealth
v. Jackie Dunn handled by Robert Carran and Phil Taliaferro.

12. On the other hand, there
were several murder cases in which a defendant was tried for murder, presented
evidence of insanity, and was found guilty but mentally ill. These cases
include Commonwealth v. Jonathan Port in Warren County in which
Port received life without parole for 25 years; Commonwealth v. Bobby
Chester Brown in Jefferson County in which Brown received 48 years;
and Commonwealth v. Scott Pennington, from Carter County originally
but tried in another venue, in which Pennington received life without parole
for 25 years. This last case was a death penalty case. In the case of Commonwealth
v. Clawvern Jacobs tried in Warren County in 1996, neither GBMI nor
insanity instructions were given despite the defendant's mental illness.

13. Thus, anecdotal evidence
suggests that the research performed elsewhere would be applicable to the
impact of GBMI in Kentucky. Regardless of the effect of the GBMI verdict
on the NGRI verdict, it is clear that the GBMI statutes are unconstitutional
if the promise of treatment is not met. It appears that the state of the
Correctional system in Kentucky is such that treatment is not being given.
Counsel request the opportunity to present evidence.

Footnotes

1Although insanity
in Kentucky is an "affirmative defense" which must be proven by the defendant,
due process requires the state to prove every element of a crime beyond
a reasonable doubt in order to support a conviction. KRS 507.020 requires
criminal intent to commit murder. The Commonwealth should be required to
prove criminal intent in order to justify a conviction, and cannot do so
in the case of a person who is insane at the time of the offense. Thus
the right to present an insanity defense where applicable rises to the
level of a constitutional right under Sections 2, 7, and 11 and Amendments
5, 6 and 14.

2Malingering was
ruled out after a careful, lengthy evaluation at KCPC. In addition, Mr.
Meadows psychiatric history, including an admission at the Medical Center
at Bowling Green one year before the alleged crimes, indicates that this
mental condition was present and persistent prior to any criminal activity.

3See KRS 504.020
providing that a person is not criminally responsible if "at the time of
such conduct, as a result of mental illness or retardation, he lacks substantial
capacity either to appreciate the criminality of his conduct or to conform
his conduct to the requirements of law"; KRS 504.060 (5) (Insanity defined
as stated above); KRS 504.060(6) (Mental illness defined as "substantially
impaired capacity to use selfcontrol, judgment, or discretion in the conduct
of one's affairs and social relations, associated with maladaptive behavior
or recognized emotional symptoms where impaired capacity, maladaptive behavior,
or emotional symptoms can be related to physiological, psychological or
social factors.")